The Immigration Policies of the Commonwealth Government
This article contains a discussion - in the context of the constitutional doctrine of the separation of powers - of some of the major challenges that Australia is facing in relation to immigration issues, particularly with respect to the significant numbers of asylum seekers and unauthorised arrivals who have sought residence in Australia.
First I outline here Australia's policies for managing immigration and humanitarian issues, and the factors that are putting pressure on our programme. Then I discuss how the legislature and the executive have been performing their respective responsibilities properly and vigorously, by taking practical steps to strengthen the integrity of Australia's migration programme and allowing Australia to continue to provide protection to people who are at greater risk. I here concentrate on the reforms that are of greatest interest in this context, viz., the legislative changes made in late September 2001 to contain the abuse of judicial review processes by unsuccessful visa applicants.
I also discuss a second topic - the role of the judiciary in giving effect to the parliament's legislative intentions.
As we all know, Australia has a long tradition of immigration. Indeed, the nation has been built on settlement from other countries.
In many ways this has determined the very nature of our contemporary society:
• Almost 25 per cent of Australians today have been born overseas.
• Around 40 per cent of Australians have been either born overseas or have at least one parent who was born overseas.
• In recent years, people from around 185 different countries have made Australia their home.
Australia's immigration policies are implemented under legislation enacted primarily under the "Immigration and emigration" and "Naturalisation and aliens" heads of power in section 51 of the Constitution.
We are one of only a few countries in the world that have operated a planned immigration programme for over 50 years. In fact, the management of Australia's migration programme is hailed as a model for other countries.
In a radio interview last month, Professor John Salt, a professor of geography at University College, London, and a consultant on migration to the European Union, The Council of Europe, and the O.E.C.D., commented that "Australia has probably gone further than any other country in developing a comprehensive management policy which is transparent, which is highly organised, [and] which lays out clearly the rules and regulations under which migration will occur . . . [It] involves discussion amongst the various interested groups and has a research base to look at how successful [it is]." 1
Next financial year, the Australian Migration programme will be the largest and most highly skilled in over a decade, with a planning level set in the range of 100,000 to 110,000 places.
Over the years, we have learned that sound immigration policy must be underpinned by some essential core values.
For Australia, the first of these is that our approach to migrant selection must be strictly non-discriminatory as far as matters such as race, religion, colour or ethnicity are concerned.
A second is that our immigration policies must enable Australians with non-Australian partners or dependent children to be re-united in Australia as permanent residents and, in time, Australian citizens.
A third core value is that the overall immigration intake must be demonstrably in the national economic interest. If this were not the case Australia's standard of living would deteriorate, community support for immigration would rapidly diminish, and Australia's capacity to provide a humanitarian program would be reduced.
A fourth core value is that Australia must contribute its fair share to the resettlement of those most in need - the principle of burden-sharing. In re-settling refugees, the Australian government devotes very considerable resources to ensuring that these people have the support they need to fully participate as members of our community.
And last, but by no means least, we must have the capacity to manage the movement of people across our borders in an orderly and efficient manner. Without this critical capacity, the idea of a managed immigration policy rapidly becomes meaningless.
Since coming to power in March 1996, the Liberal/National Coalition Government has progressively implemented a considerable number of measures to enhance the integrity of Australia's immigration programme
These measures have included adjustments to restore the Australian community's confidence in the programme, by refocussing it to contribute to Australia's development and future prosperity; and other measures to meet changing situations challenging Australia's border integrity have been added.
All these measures contribute to Australia continuing to have the economic and social capacity to give practical effect to the nation's commitment to assist those at greatest risk.
Australia has a proud tradition of providing safety for genuine refugees. Our humanitarian programme is based on our obligations under various international human rights treaties, but Australia's commitment goes far beyond those obligations, particularly through our offshore humanitarian resettlement programme.
Since World War II, Australia has resettled 600,000 refugees. The Australian government's humanitarian programme currently provides, each year, around 12,000 refugees and others who are in humanitarian need with residence in Australia.
• Australia is one of only nine countries that operate a dedicated resettlement programme each year.
• On a per capita basis, Australia's offshore refugee intake is one of the highest in the world.
Under our humanitarian programme, Australia resettles those persons in the very greatest need - those who are at risk if they remain where they are and who have no other means of escape other than resettlement in a third country.
Offshore humanitarian entrants to Australia have access to some of the most comprehensive and generous services in the world to assist them to become fully participating members of the Australian community. The assistance provided is tailored to the individual's needs, in recognition of the fact that refugees are particularly vulnerable.
Each 1000 refugees resettled under these schemes cost more than $30 million to the Australian budget.
While our desire to assist these persons is strong, Australia has a finite capacity. The pressure placed on our resources by those arriving in Australia without authority, and seeking to engage our obligations to provide protection, limits our capacity to assist those at greatest risk.
Humanitarian programme places are being diverted away from our offshore programme for people who have been identified by the U.N.H.C.R. as being in need of resettlement, and many of those people have been living in appalling conditions in refugee camps for many years.
Some asylum seekers come here from countries where there is little risk of persecution, but which are less prosperous than Australia. They seek to use our refugee determination processes to obtain the right to work in Australia or to access health services and other support at Australian taxpayer expense while their claims are assessed.
People smugglers seek to exploit the situation by encouraging (for their own profit) people who are unable to meet Australia's general migration criteria, to enter Australia without authority.
People smuggling is big business. The international organisation for migration estimates the worldwide proceeds of people smuggling to be $U.S.10 billion per annum.
In 1997-1998, the Australian Government spent in the order of $80 million on the enforcement of immigration law. Three years later, in 2000-2001, the cost was more than three times greater, at nearly $300 million.
On average, it costs the government $50,000 for every unauthorised arrival by boat from the time of arrival to the time of departure from Australia.
Australia has addressed these problems by progressively implementing a range of measures to combat people smuggling and stop abuse of Australia's refugee determination processes.
One of the core values underpinning Australia's immigration policy is that we must have the capacity to manage the movement of people across our borders in an orderly and efficient manner. Otherwise, the idea of a managed immigration policy rapidly become meaningless.
The Australian Government is well aware of its obligation not to refoule - we never have, and we never will. We are equally aware, however, that our international obligations do not give people any right to demand residence in Australia.
Following the Tampa crisis last year - of the details of which I am sure you are all well aware - legislative amendments to address the issues were passed by the Parliament. The changes include the following:
• No visas for unauthorised arrivals at certain Australian island territories;
• Power to move these persons to declared countries;
• Power to detain vessels and persons; and
• Minimum sentences for people smugglers.
Further amendments were made last week in response to indications that people smugglers are planning to land people at new destinations closer to the Australian mainland. To combat the new threats, additional Australian islands have been included in the definition of "excised offshore place". Arrivals at such places are barred from applying for any visa to enter and remain in Australia.
One of the important reforms introduced in September 2001 that I will discuss in detail today was the creation of a new judicial review scheme for visa-related decisions. These measures address the government's longstanding concerns about the increasing cost and incidence of migration litigation.
The government believes that access to judicial review in migration matters should be restricted in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in migration legislation and concerns over the misuse of court processes by those who seek to delay their stay and frustrate their removal from Australia.
A previous judicial review regime was implemented by the last Labor Government in the early 1990s. It was part of a package of reforms that was intended to reduce Federal Court litigation and to provide greater certainty as to what was required from both decision-makers and also visa applicants and visa holders. These reforms included a significant expansion of independent merits review, including the creation of the refugee review tribunal.
However, that scheme did not reduce the volume of cases before the courts. In fact, the volume increased. In 1994-95, there were less than 400 applications to the Federal and High Courts. In 2000-01, there were 1,340. And these numbers continue to grow. It is expected that by the end of June 2002, there will have been over 2,000 cases lodged in the courts in 2001-02.
Litigation costs for my department soared from $5.8 million in 1995-96, to $15 million five years later in 2000-2001.
This trend has occurred despite full and open access by applicants to heavily subsidised independent merits review by the migration review tribunal and the refugee review tribunal.
Between one third to one half of applicants withdraw their applications prior to the court hearing. Of the cases that go on to substantive hearings, the merits-based decision is currently upheld in over 90 per cent of cases.
It is hard not to conclude that there is a substantial number who are using the legal process primarily in order to extend their stay in Australia.
Faced with these problems, options were explored for best achieving the government's policy objective of restricting access to judicial review.
In light of the Australian High Court's original jurisdiction to consider challenges to the actions and decisions of Commonwealth officers under section 75(v) of the Australian Constitution, the government's legal advisers found that a "privative clause" would be the only effective mechanism. A privative clause operates to give decision-makers wider lawful operation for their decisions and thereby reduces the grounds on which the courts can set aside such decisions as being unlawful.
Under Australian High Court case law, namely the Hickman Case (R v. Hickman; ex parte Fox and Clinton (1945) 70 C.L.R. 598) and subsequent authorities, the wording of the clause in the Migration Act has the effect of limiting the grounds for finding a decision to be unlawful to the following cases:
• The decision-maker was not acting in good faith in making the decision; or
• The decision is not reasonably capable of reference to the decision-making power given to the decision-maker; or
• The decision does not relate to the subject matter of the legislation; or
• The decision exceeded the limits in the Commonwealth Constitution.
These limited grounds are intended to facilitate faster resolution of court cases, thereby decreasing delays in removal of non-citizens and lowering costs.
I am aware that the introduction of the privative clause into the Migration Act caused concern for some people and that the concern was based on a separation of powers issue; specifically, that the role of the judiciary was being interfered with in some way.
However anyone who has this concern will find comfort in comments that were made recently by the Chief Justice of the High Court of Australia, the Honourable Murray Gleeson - the head of the judicial arm of government, as it were.
In a speech entitled "Courts and the Rule of Law", delivered in November last year as part of Melbourne University's "Rule of Law" series, Chief Justice Gleeson made the following statements about the legitimacy of the parliamentary use of privative clauses as mechanisms to limit judicial review in particular areas:
"To the extent to which a privative clause, properly construed, lawfully amplifies power or limits jurisdiction, then respect for the rule of law requires courts to give effect to that expression of legislative will. Subject to the Constitution, the Parliament, in the exercise of its legislative power, is not obliged to maximise the area of potential justiciability of disputes between citizen and government."
Chief Justice Gleeson also said:
"Subject to any constitutional limitations on their powers, it is for Parliaments to decide what controversies are justiciable, and to create, and, where appropriate, limit, the facilities for the resolution of justiciable controversies. Parliaments regularly expand and contract the subject of justiciable controversy. That is what much law-making entails."
Although the new judicial review scheme for immigration matters was designed on the basis of the longstanding High Court statutory interpretation of privative clauses in other areas of law, it is inevitable that some litigants will choose to contest the validity of the privative clause in the Migration Act. If at some point in the future the scheme is found by the High Court to be invalid in any respects, the government will, of course, have to look for alternative ways of tackling the issues.
For the reasons to which I have already referred, it would simply be unsustainable and unacceptable to allow the ever-increasing immigration litigation load to grow unchecked.
Five cases involving consideration of the privative clause in the Migration Act were heard together in the Full Federal Court in Melbourne earlier in June 2001.
Before proceedings commenced, Chief Justice Black expressed concern that some comments I had made in the media could be construed by members of the public as an attempt by me to put pressure on the court in relation to the matters at hand. However as was explained in a statement submitted to the court on my behalf:
• I had no such intention; and
• I do not believe that my statements, properly recorded or taken in context, would be construed in that way by members of the public.
Decisions of the Court are in the public domain, and particular court judgments are appropriate subjects for public debate and criticism. In this light, and as stated by the High Court (M.I.M.A. v. Jia (2001) 178 A.L.R. 421 at page 440), I, as minister, am "an elected official accountable to the public and the parliament and [I am] entitled to be forthright and open about the administration of [my] portfolio which . . . is a matter of continuing public interest and debate . . . ", (Gleeson C.J. and Gummow J., quoting French J.).
The fact that Chief Justice Black expressed such concerns at all serves to highlight tensions that exist within our constitutional framework.
Up to this point I have been discussing actions taken by the Parliament and by the executive in relation to immigration issues. If there were any doubts about the appropriateness of those actions in a separation of powers sense, I hope they have been dispelled.
I would now like to make some comments about the way in which the judiciary has been carrying out its role in relation to immigration matters.
I believe that some members of the judiciary, particularly in the Federal Court, can rightly be criticised on separation of powers grounds in two respects.
The first is that some members of the judiciary are encroaching improperly on the functions of the executive arm of government, by undertaking merits review under the guise of judicial review.
Under established principles of administrative law, judicial review is a consideration of the way in which an administrative decision-maker or tribunal reached the decision made. Judicial review is not an opportunity for a reconsideration of the merits of an otherwise lawful decision.
The second is that some judicial decisions are based on reasoning that departs from the Parliament's clear legislative intention - an encroachment upon a function that is properly within the domain of the legislature. There have also been numerous instances where individual judges have reflected on the wisdom of the Parliament in passing laws which they personally do not support. These criticisms do not receive the same coverage as comments made by members of Parliament in relation to judicial decisions.
I note that these issues are also of concern to the Right Honourable Sir Harry Gibbs. In his concluding remarks at this Society's thirteenth conference, last year, Sir Harry made the following comments:
"It is disturbing that . . . there is a perception that some Federal Judges decide according to their ideological biases rather than according to law. It tends to destroy respect for the law in general, and the Federal Court in particular, that perceptions of this kind should exist, and it would indicate a most serious departure from judicial probity if the perceptions are well founded. This should be a matter of concern to those many Federal Court Judges whose reputations are beyond reproach."
Those comments were made in relation to the judicial handling of matters involving Aboriginal and industrial relations issues, but I am also aware that at previous conferences of the Samuel Griffith Society, similar criticisms have been made in relation to immigration matters. For example, some of you may recall some rather forthright comments that were made by Dr. John Forbes in a paper delivered to the eleventh conference, in 1999.
Dr. Forbes accused some Federal Court judges of "ignoring the well-known limits of judicial review and effectively conducting appeals on the merits". Professor John McMillan has expressed similar views in various presentations and articles.
One of the important messages I wish to convey is that the Australian government remains committed to having a planned migration programme and to meeting its obligations under international law by continuing to provide protection to people most at risk. The recent changes to Australia's immigration laws to which I have referred demonstrate that commitment.
The measures that have been put in place will ensure the efficacy of Australia's planned immigration and offshore humanitarian resettlement programmes. By enhancing the protection of Australia's borders from unauthorised entry and preventing the abuse of our judicial review processes, the new measures improve Australia's ability to assist those at greatest risk.
Immigration policy issues are complex. There is often a need to balance competing considerations in order to provide an effective and compassionate migration programme and also to protect our borders. In our constitutional system, it is for the legislature to strike that balance in the national interest, and that is exactly what the Parliament did when it introduced the recent changes to our immigration laws.
The executive has been performing its role in implementing that legislation, and the judiciary is duty-bound to apply it in the courts.
1. Radio National Breakfast Programme, 6 May 2002.
National Observer No. 54 - Spring 2002